‘Hipster antitrust’ becomes focus of competition policy debate

Shortly before the Senate adjourned for the August recess, Orrin Hatch, the senior Republican member of the chamber, took to the floor and sounded off on an unexpected subject: antitrust.

Forget the cratering healthcare legislation or the standoff over North Korea, the Utah senator and former chairman of the Judiciary Committee, instead aimed his ire at Democrats and others who, he argued, are on a tear to upend settled antitrust law and replace it with a subjective approach that is derisively called “hipster antitrust.”

“Here in the Senate,” Hatch contended, “we increasingly …


FTC urged to reopen Google probe after record EU fine

Not long after the European Commission slapped Google with the biggest antitrust fine it had ever levied — $2.72 billion — calls came for the Federal Trade Commission to reopen its investigation into the tech giant’s practices.

In 2013, the commission voted unanimously not to pursue charges that Google unfairly biased its search results page to gain competitive advantage over rivals. FTC documents later obtained by The Wall Street Journal showed that the staff had concluded that it was “a close call,” though they recommended against a challenge on search bias. 

But …


Antitrust players stingy to Trump, generous to Clinton so far

Donald who?

While Donald Trump is trying to cement support and money from prominent Republicans, he’s not having much luck among the antitrust bar. Perhaps they don’t feel the need to make American competition law great again.

Through June 30, none of the Republicans who are mentioned for senior antitrust posts in a Republican administration have as of yet written a check to Trump or one of the super political action committees that are supporting him, according to the Center for Responsive Politics, a research and advocacy group.

Federal Trade Commission member Maureen …


Critics aren’t appeased by Baer’s defense for clearing American Airlines-US Airways merger

When Bill Baer recently spoke about his tenure atop the Justice Department’s antitrust division, he defended the government’s much-criticized decision to allow the merger between American Airlines and US Airways, conditioned on what he described as “significant divestitures.”

If his goal was to appease the many critics of the decision, he failed. Consumer advocates and some antitrust lawyers remain irate that after its tough challenge to the $11 billion transaction in 2013, the department backed off. They contend that by green-lighting the deal in exchange for slot divestitures, consumers have been …


Smooth sailing with a few rough waves for three-member commission

Julie Brill’s departure from the Federal Trade Commission means that for the first time in more than 21 years, the agency will operate with just three commissioners. Back then, in 1994, the commission was shorthanded only briefly — less than a month — but the only other instance of a three-member commission since 1980 lasted considerably longer, from October 1985 until March 1986.

The tenure of the current three-member commission may well top that, as the prevailing view among FTC watchers is that the two vacant seats will go unfilled until …


Critics press FTC to re-examine Google’s search practices

From the moment, three years ago, that the Federal Trade Commission closed its investigation into allegations that Google manipulated its search practices to favor its own services, critics have fumed. Recently, attorneys general from Utah and Washington, DC, even asked the agency to take another look, but it’s likely a long shot that the agency will engage in a do-over any time soon.

In a letter to the commission, Utah Attorney General Sean Reyes and DC Attorney General Karl Racine noted that in the years since the FTC’s decision, regulators around …


GE-Haier deal not raising concerns yet

What a difference a few months make.

While General Electric’s proposed $3.3 billion sale of its appliance division to Electrolux raised considerable eyebrows and was ultimately withdrawn, its proposed $5.4 billion sale to Chinese appliance maker Haier Group could have fewer obstacles.

Haier, the world’s largest manufacturer of home appliances, has a relatively small market penetration in the United States, about 2 percent. That means that while its purchase of GE’s appliances will give it a stronger foothold in the US, combining the companies won’t squeeze an existing company out of the …


2015: An aggressive time for antitrust watchdogs

On the same day this month, two events made headlines in the world of antitrust: The Federal Trade Commission filed a lawsuit challenging Staple’s proposed acquisition of Office Depot, and General Electric terminated the deal to sell its appliance business to Electrolux in the middle of its trial against the Justice Department.

Though the timing of the developments on Dec. 7 was coincidental, the moves still underscore the aggressiveness of the two Washington watchdogs—a point not lost on the antitrust bar.

“I don’t think there is going to be any letup in …


Antitrust not a topic on campaign trail yet

Amid a crush of multi-billion-dollar corporate acquisitions, it would seem the prospective president should be saying a lot about the nation’s merger policies, but you wouldn’t know it from the campaign trail.

Those who aspire to the White House are by nature usually quite competitive, but aren’t keen about discussing competition policy. If you ask the presidential candidates about their economic plans or views on the Middle East they have dozens of talking points. But ask them, or their staffs, whether they favor more or less scrutiny for mergers, and the …


Congressional merger scrutiny will stay tough with GOP control, antitrust experts say

Republicans may love business, but that doesn’t mean they’ll look the other way at big mergers.

With the Senate set to be under GOP control for the first time in six years, the approach to mergers and other competition issues may well not change much, though the Federal Trade Commission might get its wings clipped a little by both chambers.

Sen. Mike Lee (R-Utah), the likely chairman of the Subcommittee on Antitrust, Competition Policy and Consumer Rights is a conservative with a strong record of opposing cartels and predatory practices, …


Mid-term elections may change leadership on Hill

Mid-term elections can be unpredictable, but expert political handicappers agree that there is almost no chance Republicans will lose control of the House in November. However, they are far less confident about forecasting which party will gain the upper hand in the Senate. 

Even so, with only two weeks to go until the election, it’s useful to preview the key Senate players who are in contention to oversee antitrust and consumer rights issues next year.

At the Judiciary Committee, either Sen. Patrick Leahy, D-Vt., will continue to lead the committee, or, should the …


Is it time to axe the Tunney Act?

The frustration in veteran antitrust attorney Bert Foer’s voice comes across loud and clear as he describes the near-futility of filing public comments under the Tunney Act to express concerns about settlement agreements the Justice Department has struck with parties seeking the go-ahead on a merger.

Foer, president of the American Antitrust Institute, all but says it’s a waste of time to try to affect either the Department’s thinking or that of the judge overseeing such merger agreements. “It’s next to useless,” he said in an interview with FTC:WATCH. “I can’t …


Airline merger draws scathing Tunney Act review

It is no secret that the comment letters that have piled into the chambers of U.S. District Court Judge Colleen Kollar-Kotelly have been overwhelmingly critical of the DOJ settlement agreement that enabled the $17-billion merger between American Airlines and U.S. Airways.

But the Justice Department, which is required by law to respond to the comments, is apparently unconcerned, telling the court on March 10 that it did not intend to request any changes to the settlement. “The remedy is a major victory for American consumers,” the agency said.

Many seasoned antitrust observers, …



A story in the last issue of FTC:WATCH incorrectly identified the name of one of Seth Bloom’s clients in his private consulting practice. The firm’s name is JNK Securities.


People: Seth Bloom

Former Senate staffer reflects on state of antitrust

As he ends his first year in the private sector, Seth Bloom, former longtime General Counsel of the Senate Antitrust Subcommittee, was in a reflective mood in talking about antitrust policy in Washington, in the past and in the future.

In an extended interview with FTC:WATCH, Bloom, who now runs his own District-based public policy and government relations firm, Bloom Strategic Counsel, PLLC, talked about his 14 years serving on the staff of the Senate committee, and what he sees on the horizon. He …


Baer named for top antitrust slot

If William J. Baer makes it through the torturous Senate nominee-approval process and takes his seat as head of the Justice Department’s antitrust division, those who know him expect the former head of the FTC’s Bureau of Competition to know when to hold ‘em and know when to fold ‘em. 

“A good thing about Bill’s background is that he has seen some good times and some bad times,” said former FTC Chairman William Kovacic, who worked with Baer as an attorney in the Bureau of Competition in the 1970s, in an …


FTC:WATCH No. 732 (2008-22)

December 15, 2008

Obama expected to move quickly after inauguration

The speed with which President-elect Barack Obama has arranged senior White House and cabinet department officials for his new administration suggests that he may change the leadership at the various independent agencies in Washington more quickly than his predecessors.

That includes the FTC, where a president has the authority to designate the chairman from among any of the sitting commissioners. The only incumbent Democratic commissioner at the FTC is Jon Leibowitz. With one vacancy pending since the departure of former Chairman Deborah Platt …


FTC:WATCH No. 699 – 2007-11

June 4, 2007

Two weeks, two energy deal defeats:
Western-Giant merger to proceed

A federal judge in New Mexico has denied the FTCs request for an injunction blocking the merger of two energy companies, Western Refining and Giant Industries. The FTC had asked for an injunction to allow its administrative law trial in the same case to conclude.

The FTC is considering an appeal of the New Mexico decision, but the merging parties are going ahead with the merger, so any FTC victories from here on would …


FTC:WATCH No. 698 (2007-10)

May 21, 2007

FTC to appeal Pennsylvania natural gas merger loss

The FTC will appeal a federal judges dismissal of the FTCs request for a preliminary injunction against an acquisition in the natural gas transmission business.

U.S. District Judge Arthur J. Schwab said that the merger had been approved by Pennsylvanias Public Utilities Commission (PUC) and that the FTC must defer to the Pennsylvania General Assembly and the PUC.

The FTC opposed the deal between Equitable Resources, Dominion Resources, and the Peoples Natural Gas Company …


FTC:WATCH No. 697 (2007-9)

May 7, 2007

Merger watch

The Justice Dept.s antitrust Division has issued subpoenas to the major automobile manufacturers in connection with its investigation of the proposed Sirius-XM Satellite Radio merger.

Monsantos second attempt in a decade to acquire seed company Delta and Pineland Co. appears likely to be successful. According to an informed source, the Justice Dept.s Antitrust Division is preparting to accept a consent decree that would require Delta & Pineland to license seed technology to new entrants.

Settlement negotiations with the FTC continue …


FTC:WATCH No. 696 (2007-8)

April 23, 2007

Identity theft task force proposes legislation

The Social Security numbers of up to 150,000 people who received Agriculture Department grants have been posted on a government Web site since 1996, but they were taken down last week. – Associated Press, April 23, 2007

A multi-agency task force headed by FTC Chairman Deborah Platt Majoras and Attorney General Alberto R. Gonzales has released a strategic plan to combat identity theft.

According to the two lad agencies, The plan focuses on ways to improve the effectiveness of criminal …


FTC:WATCH No. 695 (2007-7)

April 9, 2007

Bulletin: The FTC commissioners on April 10 voted to ask a federal court to block Western Refining, Inc.s proposed acquisition of Giant Industries, Inc. on the grounds that the merger would reduce competition for the bulk supply of light petroleum products to northern New Mexico. According to a source familiar with the transaction, Western is now attempting to negotiate a consent agreement to include divestitures that would resolve the FTCs objections.

Free market good; antitrust sound
Eighty ideas include RPA repeal, Illinois Brick redo

Four years and $4 million …


FTC:WATCH No. 694 (2007-6)

March 26, 2007

What are you wearing?

The Humane Society of the U.S. has asked the FTC to enforce the Fur Products Labeling Act, 15 U.S.C. 69 et seq. against several national clothing retailers who, it alleges, are mislabeling some of their fur-trimmed products; specifically, importing apparel from the Peoples Republic of China and labeling it for consumers as either faux fur, genuine raccoon or coyote, or rabbit fur when, in fact, the garments include fur from members of the canine family, such as domestic dog, wolf, or …


FTC:WATCH No. 682 (2006-15)

September 25, 2006

National advertising cases piling up at the FTC

The American Association of Advertising Agencies has hired a public relations rm to to stave off negative headlines and burnish the industrys reputation with reporters and other inuencers according to a September 25 report in the trade publication Advertising Age.

Some part of the industrys perceived perception problem may be found in the large number of advertising cases that the self-regulation mechanism has forwarded to the FTC in recent months.

The Council of …


FTC:WATCH No. 653 – 2005-9

May 9, 2005

Personnel progress

The Bush Administration has finally settled on a candidate to replace FTC Commissioner Orson Swindle, whose term expired in September, 2004.

The government has begun background checks on former FTC General Counsel William E. Kovacic, FTC:WATCH has learned.

Kovacic is now a professor of law at The George Washington University.

His service at the FTC goes back two decades, when he was an attorney advisor to Commissioner George Douglas during the Reagan administration. He became FTC general counsel …


FTC:WATCH No. 652 – 2005-8

April 25, 2005

Whatever happened to … Part II

South Carolina State Board of Dentistry D.9311 – On August 17, 2004, the Commissioners stayed their Order of July 28 rejecting the Board’s claim that the “state action doctrine” automatically inoculates a state professional board against antitrust scrutiny, especially in the face of contrary action by the state legislature. [FTC:WATCH No. 637, August 9, 2004].

“[S]olely as a matter of discretion, without taking any position as to the merits of any of the arguments or other statements …


FTC:WATCH No. 651 – 2005-7

April 11, 2005

Whatever happened to …

A replacement for FTC Commissioner Orson Swindle, whose term expired in September, 2004. One informed source says that the White House personnel office is so traumatized by its experience with Bernard Kerik that the people there are being super cautious. Kerik, the reader may recall, was to be nominated to head the Dept. of Homeland Security until personal problems reported in the press derailed that plan.

Its true that cabinet posts have a higher visibility than the Federal Trade Commission, …


FTC:WATCH No. 650 – 2005-6

March 28, 2005

Merger watch – how Blockbuster lost its deal

“Antitrust authorities at the FTC were scheduled to hold a meeting Tuesday, at which analysts expected the agency’s five commissioners to discuss the video rental merger.” – Reuters, March 23, 2005

When the commissioners met on Tuesday, March 22, Blockbuster, Inc.’s offer for Hollywood Entertainment Corp. was not on the agenda as an antitrust enforcement item, FTC:WATCH has learned. Rather, the commissioners had some questions that could be roughly translated as, “What the hell is going on?”


FTC:WATCH No. 649 2005-5

March 14, 2005

Appeals court overturns FTC Rx drug showcase decision
Patents trump agreements

The simple presence of economic motive weighs little on the scale of probative value.

Accusing the FTC of everything from meretricious arguments to cavalierly dismissing precedent to relying on forced evidence and ignoring its own administrative law judge, a 3-judge panel of the 11th Circuit Court of Appeals has overturned the Commissioners finding that Schering-Plough Corp. and Upsher-Smith Laboratories, Inc. violated the Sherman Act and the FTC Act when Schering settled drug patent litigation by, among other …


FTC:WATCH No. 648 – 2005-4

February 28, 2005

ChoicePoint: the FTC connection

In December, 2004, the Electronic Privacy Information Center asked the FTC to investigate its allegations that the megadatabase personal information seller ChoicePoint had invented products that circumvent “the public policy purposes underlying the” Fair Credit Reporting Act if not the FCRA itself.

“[C]ommercial data brokers choose who is eligible to buy personal information … a subtle but important deviation from the Fair Credit Reporting Act’s approach, which tends to approve record disclosure based on the use of the information, rather …


FTC:WATCH No. 615 (2003-15)

Washington, DC
September 8, 2003

Verisign agrees not to send deceptive domain name notices

Verisign, a major Internet domain name registrar, has signed an FTC consent agreement barring the firm from distributing deceptive expiration notices to those who have registered their URLs (uniform resource locators) with another service.

The FTCs action follows a California class action suit settled several months ago.

That lawsuit alleged that some domain-name owners … received from VeriSign an official-looking Domain Name Expiration Notice with a reply date that implies (falsely) …


FTC:WATCH No. 606 (2003-06)

March 17, 2003

Nestle dawdles, FTC approves suit

From the time it announced its takeover bid for Dreyers Grand Ice Cream, Inc. in june, 2002 until the end of the year, Nestle stonewalled FTC staff requests for data necessary to evaluate the competition implications of the deal, FTC:WATCH has learned.

Finally, after repeated agency requests, Nestle produced the data on December 24. On December 26, the firm certified its compliance with the agencys Second Request under the Hart-Scott-Rodino Act.

Thus, allowing for the traditional end …


FTC:WATCH No. 587 (2002-8)

April 22, 2002
Washington, D.C.

Biovail must dismiss patent suit
Rx industry antitrust red flags
Anthony on dietary supplement claims
Public comments on disgorgement
Leary on “Clinical Integration” JVs
Efficiencies defense Canadian style
DOJ criminal cases
Exclusive dealing E,C. style
Microsoft update
Playwright antitrust exemption bill
The antitrust legacy of Justice White
FTC staff directory

Merger watch

For the mergers and acquisitions business, there’s good news and bad news this week. First, the bad news. The FTC has issued a request for additional information in connection with Wal-Mart’s proposed acquisition of to Amigo supermarket chain on the island …


FTC:WATCH No. 582 (2002-3)

February 11, 2002

Washington, DC

In this issue:
’03 antitrust budgets exceed inflation
Microsoft: settlement may be changed
Intellectual property hearings start
New stamp auction bid-rigging charges
U.S./E.U. enforcement convergence
States preparing to fill “vacuum”?
Microsoft: aai v. Antitrust Division
Section 8 thresholds upped
DOJ backs Verizon’s LD application
Merger watch
Microsoft: Kohl, 30K others comment
Nestle/Ralston order revised

Antitrust jurisdiction agreement not dead … yet

A proposed FTC/DOJ agreement to divide antitrust jurisdiction remains to be implemented.

Neither the FTC nor the Justice Dept.’s Antitrust Division informed Congress of the plan before scheduling a January 17 press conference …


FTC:WATCH No. 563 – 2001-6

March 26, 2001

Another antitrust commission
Consumerists want $100 million
Antitrust economics: the inside skinny
FTC again suggests FDCPA rewrite
Anchor pays $600K price-fix fine
Website cramming settlement
Senate airline merger maneuvers
E-commerce, profiling workshops
Cartelists: whom do you trust?
Gas/electric convergence merger deal
Divestiture investigation closed

Customer Service: 202-478-0260 * e-mail: ftcwatch@usa.net

Consummated software merger to be challenged;
slotting fee case stuck in black hole

The FTC is preparing to challenge a healthcare software merger involving First Data Corp. and J.B. Laughrey, Inc. after letting it pass without conditions, FTC:WATCH has learned.

According to informed sources, …


FTC:WATCH No. 562 – 2001-5

March 12, 2001

In this issue:
HSR filings up in Jan., down in Feb.
DeWine, Kohl bill to limit airport slots
Pitofsky: no gasoline $$ collusion
Pitofsky: antitrust/intellectual property
DOJ:WATCH: airline JV, bank merger
Online privacy and security
“Technical” antitrust changes
FTC staff opinion letter: insulation
aai column: global antitrust
James nomination hearings: not yet
Help with international mergers
FTC anxiety forestalls gum bid
Supplement: FTC merger record

Up periscope!

A change of administrations in Washington, D.C., particularly a change of which party controls the executive branch, is always an opportunity for special interests to try to insinuate themselves into policy decisions, directly …


FTC:WATCH No. 542 (2000-7)

April 10, 2000

Microsoft – the decision

Having decided that “Microsoft placed an oppressive thumb on the scale of competitive fortune, thereby effectively guaranteeing its continued dominance in the relevant market,” U.S. District Judge Thomas Penfeld Jackson proceeded in his April 3 Conclusions of Law to stick his thumb firmly in the eye of the D.C. Circuit Court of Appeals.

Last year, a three-judge panel of that Circuit told Judge Jackson that he should defer to any “plausible claim” of product improvement when software engineers combine — …


FTC:WATCH No. 514 (99-1)

January 18, 1999
Washington, DC

Merger Watch

BP/Amoco merger complicates Exxon-Mobil deal

At years end, the FTC decided not to oblige a Senate Antitrust Subcommittee request to delay approval of the BP/Amoco merger.

Although the merger of BP and Amoco involves companies of enormous size, and there is a significant trend toward concentration in the petroleum industry, said FTC Chairman Robert Pitofsky, the operations of these two companies rarely overlap in a way that threatens competition. Where they do overlap, mainly in wholesale and retail sale of …


FTC:WATCH NO. 497 (No. 98-6)

Washington, DC
March 23, 1998

FTC Competition staff recommends challenge to patent pool

After nearly three years of investigation, FTC antitrust lawyers have asked the Commissioners to challenge a patent pool formed by two manufacturers of machines that use computer driven lasers to perform photorefractive keratectomy, a procedure for correcting myopia by cutting precision slices in the cornea, FTC:WATCH has learned.

The FTC inherited the case from the Justice Dept.s Antitrust Division in 1995 [FTC:WATCH No. 444, November 6, 1995]


FTC:WATCH No. 479 (97-10)

May 26, 1997

Offsets complicate Boeing – McDonnell Douglas merger review

The aircraft market is not only a world market, but also a political market in which governments that buy military airplanes award contracts in part based on negotiated offsets job-creating facilities the winning contractor agrees to place in the country buying the airplanes.

And herein lies part of the genius of Boeings bid to merge with McDonnell Douglas, according to sources familiar with the FTCs investigation. If Boeing, with a backlog of civilian airplane orders, …


FTC:WATCH No. 477 (97-8)

April 21, 1997

Administrative adjudication revival

There was a time there, in the 1970s, when it was expected that the Magnuson-Moss FTC Improvements Act would lead to an end of consumer protection trials before FTC administrative law judges because the agency would be transformed into a trade regulation rule factory and do its enforcing in federal court.

Likewise, the Hart-Scott-Rodino Act, adopted in 1976, seemed likely to throw merger challenges into federal court, leaving only the occasional monopolization or, perhaps, Robinson-Patman Act case for administrative litigation.



February 29, 1996

Merger Watch

Contract divestiture a new defense-merger remedy

The Navy’s Aegis destroyer contract could be jeopardized by Litton Industries, Inc.’s $425 million acquisition of PRC Inc. from Black and Decker, the Commission ruled this month. To remedy concerns the Commission has proposed a divestiture, the first in a defense case, and the Navy will maintain the power to veto proposed acquirers of the divested contract.

Litton is one of only two contractors sharing the contract for the Aegis destroyer, a shipboard system used to destroy guided missiles and planes. General …



January 30, 1995

Merger Watch

On January 27, FTC lawyers filed suit in U.S. District Court in Washington, D.C. for a preliminary injunction to bar Boston Scientific Corp.s planned acquisition of Cardiovascular Imaging Systems. The FTC said that Boston Scientific has agreed not to consummate the transaction until the earlier of March 30, 1995, or 11:59pm Eastern Standard Time on the second business day following the courts ruling…. The FTC announced its intention to seek a preliminary injunction in this matter on January 19 after settlement negotiations failed.



January 31, 1994

Health care, defense issues remain in the forefront

At press time, the FTC had scheduled a meeting for 10:00am January 31 to discuss staff proposals to seek preliminary injunctions blocking Hospital Corporation of America’s acquisition of Columbia Hospitals and the merger of the only two acute care hospitals in Denver, Colorado, FTC:WATCH has learned.

It is understood that antitrust objections to the multi-billion dollar HCA/Columbia deal rested only on the parties’ reluctance to agree in advance to divest an acquired hospital in Chattanooga, Tennessee, …